Volume 11 - Opinions of Counsel SBRPS No. 64

Where a church employs multiple clergy, and each clergy satisfies the criteria of section 460 of the Real Property Tax Law, the privately-owned homes of all such clergy may qualify for the clergy exemption.

An assessor has requested our comments concerning the number of clergy exemptions (Real Property Tax Law, § 460) that may be claimed from members of a single church. {1} The assessor received eight such applications from the church, but granted only one, that to the minister who the assessor determined was the church’s spiritual leader. The assessor’s understanding was that the statute permits “basically one officiating clergy per ministry or church.” We are constrained to disagree.

Although entitled “clergy,” section 460 actually provides a partial ($1,500) exemption to “[r]eal property owned by a minister of the gospel, priest or rabbi of any denomination, an actual resident and inhabitant of this state, who is engaged in the work assigned by the church or denomination of which he or she is a member, or who is unable to perform such work due to impaired health or is over seventy years of age. . . .” {2} The statute itself includes no limitation as to the number of exemptions which may be granted to the clergy of a single church, nor has it ever included such a limitation. {3}

There are few reported judicial decisions construing section 460 (probably because the small amount of that fixed dollar exemption does not usually justify litigation costs). In one of the few, Ingham v. Town of Dickinson, 192 A.D.2d 813, 597 N.Y.S.2d 173 (3d Dept., 1993), lv. to app. den., 82 N.Y.2d 653, 619 N.E.2d 661, 601 N.Y.S.2d 583 (1993), the court upheld the assessor’s denial of the exemption, finding that the applicant had failed to establish that the organization of which he claimed to be a minister was a church or that he functioned with the authority of a minister. The court also stated the applicant “must also prove that he was appointed to lead the congregation” (192 A.D.2d at 814, 597 N.Y.S.2d at 174).

This last quotation, however, does not support a conclusion that a church can have but one minister. For one thing, unlike section 462 of the RPTL, which totally exempts from taxation {4} property owned by a religious corporation and used for residential purposes by its “officiating clergymen,” {5} section 460 does not include the modifier “officiating.” Yet, decisional law construing section 462 is seemingly determinative of the issue at hand.

In Word of Life Ministries v. Nassau County, 3 N.Y.3d 455, 821 N.E.2d 130, 787 N.Y.S.2d 705 (2004), the Court of Appeals upheld the grant of seven exemptions under section 462 to the church-owned residences of the various pastors of a single church. The Court specifically stated that not all clergymen clarify as “officiating,” but rejected a doctrine of “only one officiating clergy person per congregation” (3 N.Y.3d at 458, 821 N.E.2d at 131, 787 N.Y.S.2d at 706). Instead, the Court found that “a full-time, ordained member of the clergy who presides over an established church’s ecclesiastical services and ceremonies, conducts weddings and funerals, and administers the sacraments of the church - in short, one who ‘officiates’ - is entitled to the [§ 462] tax exemption” (3 N.Y.3d at 458, 821 N.E.2d at 132, 787 N.Y.S.2d at 706). {6}

Section 462 with its inclusion of the modifier “officiating” imposes a more stringent standard for exemption than does section 460, and the Word of Life decision clearly holds that a church may have more than one officiating clergy. If a church may have multiple officiating clergy, there seems little doubt that it may have more than one clergy member whose privately-owned homes may qualify for exemption under section 460, provided the other criteria of that law are satisfied in each case. Given Word of Life, any change in this result would seem to require a statutory amendment.

August 6, 2004Revised December 8, 2004

{1} For simplicity, we are using the term “church,” but intend it as a generic term encompassing congregations of religions in general.

{2} We have expressed the opinions that cantors and deacons do not qualify because they are not ministers, priests, or rabbis (4 Op.Counsel SBEA No. 70, 6 id. No. 78, respectively).

{3} The exemption was first enacted in 1884 (c.537) in R.S. pt.1, c.13, tit.1, § 4(8) and was included in the codification of the Tax Law (L.1896, c.908, § 4). When the RPTL was recodified (L.1958, c.959), what had been section 4(10) of the Tax Law became section 460 of the new law.

{4} but not special district charges (see, 10 Op.Counsel SBRPS No. 38)

{5} As the Court of Appeals discussed in Congregation Kollel Horabonim, Inc. v. Williams, 48 N.Y.2d 301, 398 N.E.2d 515, 422 N.Y.S.2d 909 (1979), the provisions of what is now section 462 were first enacted in 1892 (c.565, adding subdivision 11 to R.S. pt. 1, c.13, tit. 1, § 4). It provided, “A dwelling-house owned by any religious corporation and the land upon which the same stands, while and during only the time actually used by the officiating clergyman of such religious corporation shall be exempt to an amount not exceeding two thousand dollars, but not more than one dwelling actually used by any one religious corporation shall be so exempt.”

In 1896, when the Tax Law was codified (L.1896, c.908), the exemption was amended to read, in relevant part, “All dwelling-houses and lots of religious corporations while actually used by the officiating clergymen thereof, but the total amount of such exemption to any one religious corporation shall not exceed $2,000.” In the 1896 Report of the Commission on Statutory Revision, the Commissioners stated that they intended “no change of substance” in the new language. If no substantive change was intended in the 1896 law, then the use of the plural “officiating clergymen” was apparently used so as to be grammatically correct with the plural terms “religious corporations” and “dwelling-houses.” Since the total exemption available to any one religious corporation was then limited to $2,000, any ambiguity caused by the new language was unlikely to prompt litigation, and we’re aware of none.

In 1944, chapter 529 increased the monetary limit on what is now section 462 to $3,000, and in 1958 (c.281), the monetary limit was deleted. Subsequently, the Real Property Tax Law was enacted, again with no substantive change being intended (RPTL, § 2002(6)), but the change made by chapter 281 was not incorporated therein. It was the following year (L.1959, c.733, § 1).